Australia: Federal anti discrimination legislation proposed to be harmonised

IN BRIEF

The Federal Government recently released an exposure draft of its proposed Human Rights and Anti-Discrimination Bill 2012 (the Bill). The Bill harmonises the current five pieces of Federal anti discrimination legislation: Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth) and Australian Human Rights Commission Act 1986 (Cth) by consolidating them. This will help ensure the highest standards are consistently applied and enforced.

The Bill introduces protection against discrimination on the grounds of sexual orientation and gender identity aligning with the standards in the States and Territories on this issue.

PROTECTED ATTRIBUTES

The Bill introduces broader protection against discrimination through a list of what are known as "protected attributes".

DISCRIMINATION

The Bill introduces a test for discrimination which is based on "unfavourable treatment" because a person has a particular protected attribute (or attributes). Unfavourable treatment includes harassment or offensive, insulting or intimidatory behaviour.
Discrimination also includes the imposition of or proposing to impose a policy which has the effect or likely effect of disadvantaging people who have a particular protected attribute (or attributes). Interestingly the Bill makes it plain that proposing to treat another person unfavourably or proposing to impose a policy will be treated in the same way as if these things had occurred.

The Bill provides that it is unlawful to discriminate against another person if the discrimination is connected with any "area of public life". The Bill states that areas of public life include (but are not limited to):

• work and work-related areas;
• education or training;
• the provision of goods, services or facilities;
• access to public places;
• provision of accommodation;
• dealings in estates or interests in land;
• membership and activities of clubs or member-based associations;
• participation in sporting activities;
• the administration of Commonwealth laws and Territory laws, and the administration or delivery of Commonwealth programs and Territory programs.

There are various exceptions in the Bill where conduct will not be unlawful. There is a defence of "justifiable conduct" which means that if the conduct is undertaken in good faith to achieve a "legitimate aim", and a reasonable person would consider that the conduct would achieve that aim by "proportionate means", then it will not be unlawful conduct. If the conduct concerns discrimination on the grounds of disability, conduct is not justifiable where there is a reasonable adjustment that could have been made (which wasn't) which could have lessened or removed the discriminatory effect. For an employer, the Bill also includes the defence of inherent requirements of work, to ensure employers can hire employees who are able to undertake the required work.

The Bill contains provisions making it unlawful to sexually harass a person where relevant circumstances include a person's sex, age, marital or relationship status, sexual orientation, religion, race or disability and the harassment is connected with any area of public life. Racial vilification is unlawful.

It will also be unlawful to request or require information for the purpose of engaging in discriminatory conduct or deciding whether to enter into such conduct.

REVERSE ONUS OF PROOF

Importantly, the Bill contains a reverse onus of proof, which means that if a claim of discrimination is unable to be conciliated or otherwise disposed of and comes before a court, and the applicant provides evidence establishing the existence of discriminatory conduct, then it is up to the respondent to establish that the conduct was not unlawful. It might be noted that there is a reverse onus of proof in adverse action claims under the Fair Work Act 2009 (Cth) (which includes claims based on discrimination in employment).

This change strengthens protection for individuals and is justified by the Federal Government on the basis the person making the decision or undertaking certain conduct is best equipped to know the reasons for their actions.

THE AUSTRALIAN HUMAN RIGHTS COMMISSION

The Bill empowers the Commission to produce Guidelines to assist people to avoid engaging in unlawful conduct or conduct contrary to human rights. These Guidelines and any person's compliance with them may be taken into account in the event of a complaint.

The Bill proposes voluntary compliance methods whereby the Commission can review policies, programs and "action plans". Policies, programs and action plans can upon application, be reviewed by the Commission and any subsequent report by the Commission may be used in any subsequent complaint proceedings whether before the Commission or the court.
The apparent intention of the Bill is to encourage proactive steps from persons and organisations that may assist in compliance, and reduction in exposure to future complaints.

WHAT DOES THE BILL MEAN FOR EMPLOYERS?

Under this Bill employers may be held liable for the unlawful conduct of directors, employees and agents unless they have taken precautions, and exercised due diligence to avoid the discriminatory conduct.

Employers would be well advised therefore, to take preventative action and review or implement policies and programs having regard to the proposed new legislative framework and existing laws.

Extreme care should be taken in developing policies and in indicating the status of draft policies bearing in mind that proposing to impose a policy will be treated in the same way as if it had actually been adopted.

Employers may also wish to make use of the Human Rights Commission's capacity to review proposed policies and programs especially where the issues are complex or likely to be controversial.

Employment Seminars

Swaab employment partners, Richard Ottley and Warwick Ryan will be holding a free seminar in February 2013 on the recent changes to discrimination. Please register your interest at events@swaab.com.au.

For further information please contact:

Richard Ottley, Partner
Phone: + 61 2 9233 5544
Email: rbo@swaab.com.au

Laura Sowden, Solicitor
Phone: + 61 2 9233 5544
Email: lms@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.